055-NLR-NLR-V-71-THE-SOUTH-CEYLON-DEMOCRATIC-WORKERS-UNION-Appellant-and-R.-R.-SELVADURAI-and-.pdf
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South Ceylon Democratic Workers' Union v. Selvcdurai
19S2Present: T. S. Fernando, J.
THE SOUTH CEYLON DEMOCRATIC WORKERS’ UNION,Applicant, and R. R. SELVADURAI and another,
Respondents
S. C. 328 of 19GJ—Application for a Mandate 'n the nature of a Writ ofMandamus andjor Certiorari under section 42 of theCourts Ordinance
Industrial dispute—Dispute between 0 registered co-operative society and an officer ofthe society represented by a trade union—Deference to arbitration under theIndustrial Disputes Act—Jurisdiction of the arbitrator—Industrial DisputesAct {Cop. 131), os amended by Act No. 62 of 1957, ss. 4 (1), 16, 20—Co-operativeSocieties Ordinance (Cap. 124), s. 53— Certiorari—Duly of the arbitrator to actjudicially—“ Error on the face of the record
In a reference under section 4 (1) of the Industrial Disputes Act for tho settle-ment of an industrial dispute by an arbitrator, tlio dispute waa between atrade union and a registered eo-eperntivo society as to whether one II, who was amember of the trade union and the administrative secretary of the co-operativesociety, was entitled to relief by reason of a wrongful termination of his servicesbv the society. Tho arbitrator held that he had no jurisdiction “ to makea just and equitable order under the Industrial Disputes Act ” by reason ofsection 53 of tho Co-operative Societies Ordinance creating an exclusive juris-diction in the arbitrator and/or registrar specified therein. Ho further stated inhis order that if he-had jurisdiction he would not have refused to make anaward, and indeed would have made quite a different order.
Held, (i) that when a trade union has taken up as its own the cause of oneof its workmen, the cause, for all purposes of the Industrial Disputes Act, mustbe regarded as that of the union and not that of the individual workman.
that the arbitrator erred in law when he stated that section 63 of theCo-operative Societies Ordinance deprived him of jurisdiction “ to make a justand equitable order under the Industrial Disputes Act ”.
that it is the duty of an arbitrator to whom a reference has been made in
terms ol section 4 (I) of the Industrial Disputes Act to act judicially. Inasmuchas the arbitrator's order contained an “ error on its face ”, the remedy ofcertiora. i was available to the union.0
T. SJ. FERNANDO, .T.—Sovth Ceylon Democratic- Workers' Union245
v. Selvadura*
APPLICATION for a writ of certiorari and/or mandamus.
C. Bangana’han, Q.C., with M. T. M. Sivardeen, for the applicant.
H. W. Jayewardme, Q.C.. with S. Nandalochnnn and C. P. Fernando.for the 2nd respondent.
Cur. adv. vtdt
May 14,1962. T. S. Fernando, J.—
The applicant Union seeks a quashing of an order refusing to makean award mode by an arbitrator to whom the Minister of Labour referredin terms of section 4 (1) of the Industrial Disputes Act (Cap. 131), asamended by Act No. 62 of 1957, for settlement by arbitration an industrialdispute within the meaning of the-said Act. The parties to the disputewere the applicant and the 2nd respondent. The statement preparedby the Commissioner of Labour in terms of section 16 of the Act specifiedthat the matter in dispute between the South Ceylon Democratic Workers"Union (the applicant), and the Galle Co-operative Stores Union Limited,,(the 2nd respondent), was “ whether the non-employment of one D. SHettiarachchi was justified and to what relief he is entitled
Hettiarachchi referred to in the above paragraph, a member of theapplicant Union, was employed from 10th October 1954 as administrativesecre: ary of the 2nd respondent, a society registered under the Co-operativeSocieties Ordinance (Cap. 124). His services were discontinued by theBoard of Management of the 2nd respondent society-on 14th February1959. The society claimed that the services of Hettiarachchi werediscontinued after inquiry held on charges framed in respect of certainirregularities. In the proceedings before the arbitrator, the 1strespondent to this application, the society raised as a matter of law thatsection 45 of the Co-operative Societies Ordinance (now sect:on 53)operated as a bar to the assumption by the arbitrator of jurisdictionto make an award under the Industrial Disputes Act notwithstandingthe reference made by the Minister. In an order made on 25th February1961 the arbitrator, while expressing his view that “ the dismissal ofHettiarachchi is entirely unjustifiable ”, stated that he was unable todistinguish the-case of Sanmugam v. Badulla Co-operative Stores UnionLtd.1 as being inapplicable to the d:spute before him, and held that hehad no jurisdiction to make an award. He went on to add that “ if hehad jurisdiction to do so he wou d unhesitatingly hold that the dismissalis unjustifiable and either dire t reinstatement with back pay or orderreasonable compensation.” In Sanmuram’s case (supra) this Courtheld that section 53 of the Co-operative Societies Ordinance ousts thejurisdiction of the ordinary courts over a dispute between a registeredco-operative society and any officer of the society when the disputetouches the business of the society.
(1952) 54 N. L. B. 16.
i
240 T. S. FERNANDO, J.—South Ceylon Democratic Workers' Union
v. Selvadurai
On behalf of the applicant Union it was contended that the ordershould be quashed on the ground of error on its face. The error pointedto by learned counsel was claimed to be two-fold :—(i) that inasmuchas the dispute referred to the arbitrator was one between the applicantUnion and the society, section 52 of the Co-operative Societies Ordinancehad no application whatsoever as the Union was not a member of thesociety or any officer or employee ‘.hereof, and (ii) that, in any event,the arbitrator was wrong in law in holding that he had no jurisdiction tomake an award under the Industrial Disputes Act by reason of section53 of the Co-operativo Societies Ordinance creating an cxclusivejurisdiction in the arbitrator and/or registrar specified therein.
In respect of the first of the errors alleged, counsel referred me to thedistinction between a dispute such as is specified in section 53 of theaforesaid Ordinance and an “ industrial dispute ” as defined in theIndustrial Disputes Act (Cap. 131), as amended by Act No. 62 of 1957, andstressed that in the definition of an “ industrial dispute ” the expression“workmen” includes a trade union consisting of workmen. On acomparison of the relevant provisions of the two statutes concerned itis plain that the applicant Union was bereft of any status to have invokedthe power of the Registrar in respect of the dispute we are here concernedwith, while its status under the provisions of the Industrial Dispute's Actcannot be doubted. In that view of the matter, the question of theprovision of the Co-operative Societies Ordinance prevailing does notarise, and Sanmugam’s case (supra) itself has no application. Theapplicant Union could have come in as a party to the dispute only throughthe provisions of the Industrial Disputes Act and the arbitrator waswrong in law in holding that he had no jurisdiction to make an award.Mr. Jayew'ardene, on behalf of the society, submitted that the Unionwas merely an agent of He tiarachchi who remained the principal onone side of the dspute, and that the circumstance that the Union hadohosen to take up the cause of the workman did not make the d sputeany the less a dispute between He 1 tiarachchi as the workman on the onehand and the society as the employer on the other. I am unable to agreewith the submission thus made. The definition of “industrial dispute”in the Act appears to have been framed with the deliberate purpose olproviding for trade unions to take up as their own the cause of workmenbelonging to their unions, and when a union has so taken up as its ownthe cause of one of its workmen, the cause for all formal purposes of theAct must be regarded as that of the Union and not that of the individual .workman.
Even if I had reached a different conclusion in regard to the first of theerrors complained of, I would have been in no doubt that the order of thearbitrator calls to be quashed by way of certiorari as he, in my opinion,erred in law when he stated therein that the Co operative SocietiesOrdinance operated to deprive him of jurisdiction “ to make a just andequitable order under the Industrial Disputes Act I do not think itnecessary to give my reasons for my opinion here at any length as I have
T. S. FERNANDO, J.—South Ceylon Democratic Workers' Union
v. Setvadurai
247
set them out sufficiently in my judgment in another case delivered todaywhere the same question arose—see Ceylon Coconut Producers' Co-operativeSocieties Union Ltd. v. Jayakodyl. I might however add that Mr.Ranganathan brought to my notice certain decisions of the High Courtsof India which appear to support the view which has commended itselfto me. Reference to one of these decisions might usefully be made inthis connection. In South Arcol Co-operative Motor Transport SocietyLtd. v. Syed Batcha2, Ramachandra Iyer, J. in the Madras High Court,dealing with a case where the question arose whether a dispute whichhad arisen fell to be dealt with under the Madras Co-operative SocietiesAct (which contained provision on the lines of section 53 of our Ordinance)or the Industrial Disputes Act of 1947, after referring to the circum-stance that the Industrial Disputes Act enabled workmen to make claimsnot available to them at common law, followed the observations in anearlier case (Nagaralnammal v.. Ibrahim Sahib (1955) I. L. R. Mad.460 at 474)—reproduced below :—
“ Where a statute takes over and occupies a field previously notregulated by legislation, the rights and power conferred and theobligations imposed by the statute must be worked out within thestatutory framework. If a statute confers a particular right andprescribes a particular mode for its enforcement, the enforcement ofthe right must be sought in that mode. ”
Mr. Jayewardene attempted to counter the force of the argumentsthat the arbitrator was wrong in reaching the decision he did that hewas without jurisdiction in the matter by submitting that, as the arbitratorhad jurisdiction to decide the question whether or not he had jurisdiction 'to make an award, i.e., as he had jurisdiction to decide that questionrightly as well as wrongly, even a wrong decision on his part could notbe challenged by way of certiorari. This submission would have beenentitled to prevail had the arbitrator’s order •omplained of containedno error on its face. If I may use the picturesque language of LordSumner in R. v. Nat Bell Liquors Ltd.3, if the face of the record in theparticular case is not “ the inscrutable face of a sphinx ”, or, in otherwords, if the order made of record is a speaking order, this Court isentitled to examine it, and, if there be error on i he face of it, to quash it.The jurisdiction to quash, according to the law of Eng1 and, the decisionof a statutory tribunal on the ground of error on the face of the recordwas conside ed not so very long ago, both by the King’s Bench Divisionand by the Court of Appeal, in the notable case of R. v. NorthumberlandCompensation Appeal Tribunal, Ex parte Shaw*, where certiora i is saidto have been restored to its rightful position to supervise within limitsthe observance of the ’aw by inferior tribunals, and I think it must betaken as well settled that error appearing on the face of the record of adecision of a statutory tribunal renders that decision liable to be quashed.It is hardly necessary to emphasize that our law on this point follows thatof England.
1 {1962) 64 N. L. B. 175.? (1960) 19 Indian Factories Journal Reports, p. 176,
• {1922) A.G.at 159.^ {1951) 1 A. E. Br 268 ; (1952) 1 A. E. B. 122.
248T. S. FERNANDO, J.—SotUh Ceylon Democratic Workers'Union
v. Selvadtirai
Mr. Jayewardene next attempted to limit the power to quash to casesof " manifest error * , as he called it; but if what he meant to convey wasthat gross error must be shown, I must with due respect disagree for,in my opinion, what is contemplated by “manifest error” in this contextis no more than error which must be manifest or plain on the face of theadmissible record, not error which can be discovered only after assiduoussearch beyond its face. In the instant case, the arbitrator has expresslystated in so many words in the very order canvassed that had hejurisdiction he would not have refused to make an award, and indeedwould have made quite a different order.
It remains for me to consider certain other arguments put forwardby Mr. Jayewardene against the rule nisi issued in this matter beingmade absolute. He contended (a) that the functions of an arbitratorto whom a reference has been made in terms of section 4 (1) of the IndustrialDisputes Act are administrative and not judicial, and (b) that if they arejudicial, the arbitrator has not been appo nted as contemplated in theConstitution to perform such judicial functions. In regard to contention(a), I do not think I can uphold the argument that section 20 of theIndustrial Disputes Act which enables a party to repudiate an awardof an arbitrator has the effect of rendering the act of the arbitrator anadministrative function ; moreover, it is plain that, if the principle soprecisely stated by Atkin, L.J. in R. v. Electricity Commissioners1 iskept in mind, the arbitrator had both legal authority to determinequestions affecting the rights of subjects and a'so the duty to act judicially.In regard to contention (6), Mr. Jayewardene was obviously seeking tobring the case of this arbitrator too within the ruling of the Court in therecent decision of Senadhira v. The Bribery Commissioner2. The distinc-tion between arbitral and judicial power was referred to in that verycase, and I need but reproduce one observation contained in the judgmentpronounced in the Privy Council by Lord Simonds in At orney-Generaiof Australia v. Reginam3:—
“ Before turning to a consideration of the vital question in thiscase, it is desirable to repeat that (as was said in the majority judgment)the funct on of an industrial arbitrator is completely outside the realmof judicial power and is of a different order. ”
Both contentions (a) and (6) must in my opinion fail.
For the reasons wh'ch I have indicated above the applicant hasestabl shed his claim that the order of the arbitrator made on 25thFebruary 1961 calls to be quashed, and it is accordingly quashed. Asthe dec s on in law which led to the order now quashed has been shown tobe wrong, it follows that it is now open .o the arbitrator to make anaward. The applicant is, in my opinion, entitled also to the consequential
• (1924) 1 K.B. at 204.* (1961) 63 N. L. R. 313.
* (1957) 2 A. B. B. at[49.
ABEYESUNDERE, J.—Registrar-General v. deed rick
249
order by way of mandamus, and I would accordingly direct that theproceedings be remitted to the arbitrator so that he may now make hisaward giving, if he considers such a course necessary, a further opportunityto the parties to make any submissions on the matter in dispute.
I order the 2nd respondent to pay to the applicant the costs of thisapplication.
Application allowed.